Friday round-up

Posted Fri, March 23rd, 2012 10:31 am by Joshua Matz

The wave of previews, analyses, and editorials written in anticipation of next week’s oral arguments in the health care cases continued. BBC News, ABC News, and NPR examine some of the issues at stake in the upcoming oral arguments, while Bob Drummond of Bloomberg Businessweek reports on the bankruptcies that have hit some of the individual challengers to the mandate.

Debates over the constitutionality of the individual mandate dominate the coverage. In an op-ed for the Wall Street Journal, David Rivkin, Jr. and Lee Casey argue that an opinion upholding the mandate would “forever warp the federal-state division of authority.” At NPR, Michael Martin interviews Michael Cannon of the CATO Institute, who opposes the law, while Steve Huntley argues in the Chicago Tribune that the law is “an expansion of the power of the federal government into our everyday lives” – a sentiment that Grace-Marie Turner echoes in her op-ed in the Milwaukee-Wisconsin Journal Sentinel. At The Hill, Mike Lillis reports on Nancy Pelosi’s characterization of the Affordable Care Act as “iron-clad constitutionally.” At Reuters, Joan Biskupic concludes that “a review of lower court rulings by conservative judges, subtle signals from individual justices, and interviews with professors and judges across the ideological spectrum suggest that … the court will uphold the law.” US News & World Reports and Jonathan Chait of New York Magazine reach a similar conclusion, which is championed by Leslie Meltzer Henry and Maxwell Stearns in commentary for the Baltimore Sun. At Balkanization, Philip Bobbitt has posted an argument in the form of a mock amicus brief arguing that the Court could uphold the individual mandate under Congress’s power to provide for the “common Defence”; Mary Dudziak replies at the Legal History Blog. Finally, Dahlia Lithwick argues at Slate that, although the mandate is clearly constitutional, the real question is whether the Court’s five conservative Justices will still strike it down – and concludes that they will not, suggesting that they are saving capital for an upcoming “two years during which the remainder of the Warren Court revolution will be sent through the wood chipper.”

At the Huffington Post, Jennifer Ng’andu explores the significance of the case for Latinos, while Ann O’Leary discusses its implications for children; both argue that the Court should uphold the law. At MarketWatch, Russ Britt reports that “few observers [of the Court] will be on edge as much as the insurance industry,” while Kaiser Health News looks at some of the strategies employed by healthcare industries to defend their interests at the Court.

Addressing the Medicaid expansion issue (which Lyle previewed for this blog earlier in the week) at ACSblog, Timothy Jost argues that it is “unfortunate that the Supreme Court took certiorari on this novel and unsupported theory.” Doug Kendall echoes this sentiment at the Huffington Post, where he contends that “this claim is wrong, but if it were to succeed, it would be a constitutional earthquake that would throw into question Medicaid and other federal statutes that create federal/state partnerships to solve nationwide problems such as health care, child welfare and discrimination.”

Commentators have also focused on non-merits issues. At Politico, Daniel Conkle discusses the Anti-Injunction Act (which will be argued Monday morning) and contends that this “constitutional Armageddon” could “could end with a whimper instead of a bang” — and that “our democracy might be better off if it does.” Regarding the severability issue, which Lyle previewed for this blog yesterday, N.C. Aizenman reports in the Washington Post that the consequences of a full invalidation of the Affordable Care Act will depend on “where you live, who you work for and how you get your insurance,” while Abbe Gluck and Michael Graetz contend in an op-ed for the New York Times that “if the Supreme Court strikes the mandate down, the rest of the law should stand, and Congress should have to decide what happens next.” Julie Rovner of NPR discusses how the Affordable Care Act could survive without a mandate.

Attention has also turned to the advocates who will present oral argument. At the Wall Street Journal Law Blog, Joe Palazzolo reports that Paul Clement and Donald Verrilli, Jr. are “dueling rock fans,” while at NPR, Nina Totenberg profiles Solicitor General Verrilli.

Finally, Elizabeth Dowskin of Bloomberg Businessweek and Jamie Dupree of the Atlanta Journal-Constitution report on the scramble for tickets to the oral arguments, while Cokie Roberts of ABC News looks at long oral arguments that made history and Richard Cowart describes this Court in the the Tennessean as one of the most diverse Supreme Courts in U.S. history. And commentators continue to debate whether the oral argument should be televised: Andrew Cohen argues in The Atlantic that the Justices “made a big mistake” in refusing to allow cameras in the courtroom, Josiah Royce of The Hill reports that Senator Sessions invoked separation of powers concerns while halting a proposed bill that would require the Court to televise argument in the healthcare cases, and Andrew Rosenthal writes at the Loyal Opposition Blog of the New York Times writes that “the Senate is in a bad position, at the moment, to make demands of any federal court, because it shows a shockingly low level of respect for the judiciary.”

News reports and commentators also focused on the Court’s recent decisions and oral arguments. The Denver Post, Washington Post, Denver Westword Blog, and ABA Journal covered Wednesday’s oral argument in Reichle v. Howards, in which the Court considered whether the existence of probable cause to make an arrest bars a First Amendment retaliatory arrest claim and whether the arresting agents should have received qualified immunity. (Lyle reported on the argument for this blog.)

Responding to Tuesday’s opinion in Coleman v. Maryland Court of Appeals, in which the Court held that state workers may not sue their employers for money for violating the self-care provision of the federal Family and Medical Leave Act, Ariela Migdal of the ACLU characterizes the opinion as part of the Court’s “War on Moms,” while David Gans of the Constitutional Accountability Center writes that “there are now five Justices who will look to second-guess efforts by Congress to enforce the Fourteenth Amendment’s guarantees of liberty and equality.”

Turning to Wednesday’s opinion in Sackett v. EPA, in which the Court held that landowners may bring a civil action under the Administrative Procedure Act to challenge the EPA’s issuance of an administrative compliance order under Section 309 of the Clean Water Act requiring them to take certain actions with respect to their property, Sean Moloney of RegBlog provides general coverage of the opinion, Jennifer Rubin of the Washington Post’s Right Turn Blog describes it as “a revealing decision — about the Obama administration, more than the court,” and Kristen Hinman of Bloomberg Businessweek reports that “the Sacketts still can’t get started today on their dream home. But they are a step closer to doing so.”

Finally, commentators discussed the Court’s recent pair of plea bargain decisions: Missouri v. Frye and Lafler v. Cooper. Steven D. Schwinn of the Constitutional Law Prof Blog and Erica Goode of the New York Times report on the opinions. The editorial board of the New York Times applauds the opinion, arguing that “The court has strengthened [the right to effective assistance of counsel], and improved American justice, by applying it to the entire plea-bargaining process.” Newsday, Kevin Drum of Mother Jones, Nicole Flatow of ACS Blog, and Tim Lynch of CATO@Liberty also praise the decision.

At Politico, Rick Hasen argues that the question whether “super PACs and other outside campaign finance groups corrupt” is at the heart of the Montana campaign finance case that may be before the Court next Term.

Carrie Johnson of NPR reports that the Court’s opinion in United States v Jones (the GPS tracking case) “set off alarm bells inside the FBI, where officials are trying to figure out whether they need to change the way they do business.”

In the Washington Post, James M. Oliver discusses the pending cert. petition in Tarrant Regional Water District v. Herrmann, describing it as a case that could affect “the economic future of the American West.”

In an op-ed for the Washington Post, former Senator Arlen Specter argues that if the Justices decline to adopt more rigorous recusal standards, Congress should legislate such standards into law.

Merits Case Pages and Archives

On Monday, the justices met for their September 25 conference. The justices removed Trump v. International Refugee Assistance Project and Trump v. Hawaii from the court's October sitting. We expect orders from this conference on Thursday. The October 2017 term will begin on Monday, October 2. The calendar for the October sitting is available on the court's website.

Major Cases

Trump v. International Refugee Assistance Project(1) Whether respondents’ challenge to the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780 is justiciable; (2) whether Section 2(c)’s temporary suspension of entry violates the Establishment Clause; (3) whether the global injunction, which rests on alleged injury to a single individual plaintiff, is impermissibly overbroad; and (4) whether the challenges to Section 2(c) became moot on June 14, 2017.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin’s redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court’s test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of September 25, 2017

Collins v. Virginia Whether the Fourth Amendment's automobile exception permits a police officer, uninvited and without a warrant, to enter private property, approach a house and search a vehicle parked a few feet from the house.

Butka v. Sessions Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.

National Institute of Family and Life Advocates v. Becerra Whether the free speech clause or the free exercise clause of the First Amendment prohibits California from compelling licensed pro-life centers to post information on how to obtain a state-funded abortion and from compelling unlicensed pro-life centers to disseminate a disclaimer to clients on site and in any print and digital advertising.

On August 16, Judge Jon Newman of the U.S. Court of Appeals for the 2nd Circuit gave a lecture, “The Supreme Court — Then and Now,” in which he compared the Supreme Court today to the court in October Term 1957, when Newman served as a law clerk to Chief Justice Earl Warren.